https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6656

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MURANG’A** **CIVIL APPEAL NO. E091 OF 2024** **ELIJAH JOHN MWANGI NJOROGE …....……….…..………. APPELLANT** **VERSUS** **SYLVIA NJERI KAGATHII &** **MARY MUTHONI NDUNG’U** (Suing as the legal representatives of the estate of the late GABRIEL WANDERI NDUNG’U)**…………………….……… RESPONDENT** **JUDGMENT** 1. This is an appeal from the Judgment and decree of Hon. Jackinda Renna Aketch (RM) delivered on the 12.08.2024 in Kenol MCCC No. E419 of 2023. The appellant was the defendant in the lower court. 2. The Memorandum of Appeal dated 09.09.2024 has 7 repetitive and prolix paragraphs. The argumentative Memorandum of Appeal clearly challenged the award on quantum and liability. Order 42 Rule 1 requires that the memorandum of appeal be concise. The same provides as doth: 3. **Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.** 1. **The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.”** 2. The Court of Appeal had this to say in regard to rule 86 (which is *pari materia* with Order 42 Rule 1). In the case of **Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -** “We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented: “We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 19th September 2018 raise only two issues…” 1. Repetitiveness of the Memorandum of Appeal is such a waste of judicial time. In **Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR**, the Court of Appeal observed that : - “Our first observation is that the memorandum of appeal in this matter sets out repetitive grounds of appeal. The singular issue in this appeal is whether Section 62 of the**Kenya Ports Authority Act**ousts the jurisdiction of the High Court. We abhor repetitiveness of grounds of appeal which tend to cloud the key issue in dispute for determination by the Court. In **William Koross** **V. Hezekiah Kiptoo Kimue & 4 others, Civil Appeal No. 223 of 2013**, this Court stated: **“The memorandum of appeal contains some thirty-two grounds of appeal, too many by any measure and serving only to repeat and obscure. We have said it before and will repeat that memoranda of appeal need to be more carefully and efficiently crafted by counsel. In this regard, precise, concise and brief is wiser and better.”** 1. The singular issues are on damages especially a multiplier of 33 years and liability. It is whether the lower court erred in its award of general damages in respect of this fatal accident claim, by awarding damages that were inordinately high and not supported by evidence. 2. The suit in the lower court was filed by a Plaint dated 20.09.2023 and amended on 23.04.2024. The Respondent claimed damages for an accident that occurred on 19.12.2022. The deceased was a rider along Kenol-Sagana road when, reportedly motor vehicle registration number KCV 810C owned by the appellant lost control and rammed onto motor cycle registration number KMFH 060E. 3. The deceased was said to be young man, working with Muranga South Water and Sewerage Company Limited, earning a net salary of Ksh.32,242/= with 2/3 of the income spent on his family and other part on himself. Special and funeral expenses of Ksh 182,350/= were pleaded. 4. The appellant filed a defence stating that the motor cycle registration number KMFH 060E was driven in a careless manner. Particulars of negligence were set out in the defence dated 4.03.2024. Impugned judgment 1. The court applied a sum of Ksh 34,242/= as multiplicand, 1/3 dependency ratio and a multiplier of 33 years making a total of Ksh. 4,519,944/= less 20% contribution. Evidence 1. A police officer, PC Kephine Ongiri, testified that an accident did occur involving the deceased, who was a rider along Kenol-Sagana road when, motor vehicle registration number KCV 810C knocked him on 19.12.2022. He stated that he was not the investigating officer. 2. The first appellant, Sylvia Njeri, testified and stated that the deceased was her husband and they had two children. She stated that the deceased was earning Ksh 34,242/= as pleaded. The deceased is said to have left 2 children and a wife. The death certificate indicated that the deceased was a plumber aged 25 years. The respondents were granted letters of administration ad litem on 23.06.2023. 3. The appellant testified that he saw motor cycle registration number KMFH 060 E. He swerved to avoid being hit but the vehicle was hit on the left frontal wing. He was driving at 80 Kph. He tried to swerve and veered off the road. He ran away from the scene fearing his security. His vehicle was not in a good mechanical condition. He eventually reported the accident. 4. DW2 was an investigator who testified and was cross examined. Submissions 1. The Appellant filed submissions dated 30.1.2026 and submitted that liability ought to have been 100% against the Respondent. It was submitted in this regard that the deceased caused the accident and the court did not consider evidence in that aspect. 2. On quantum, the Appellant submitted that a multiplier of 33 years was excessive and 15 years ought to have applied. Reliance was placed inter alia on **James Chege Kagia v Fredrick Kimani Gitau & Another (2019) eKLR**. 3. The Respondent filed submissions dated 12.2.2026 by which it was submitted that the finding of the lower court on liability was proper and should be upheld. 4. On quantum, it was submitted that the multiplier of 33 years was not inordinately high. The dependency ration of 1/3 was unfair as it ought to have been 2/3. Reliance was placed on **Hohn Oriedo Zakayo & Another v Crown Bus Services (2021) eKLR**. The Respondent consequently submitted for compensation in general damages as follows: 34,242/= x 12 x 33 x 2/3 = Ksh. 9,039,888/=. 1. However, there is no cross appeal filed. Analysis 1. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. 2. In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated: “…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 1. The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus classicus case of **Selle and another Vs Associated Motor Board Company and Others [1968]EA 123**, where the Judges in their usual gusto, held as follows;- “.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.” 1. The Court is to bear in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them. 2. In the case of **Peters vs Sunday Post Limited [1958] EA 424**, court therein rendered itself as follows:- **“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”** 1. The court is asked to establish whether the lower court erred in finding, on a balance of probabilities that the Respondent failed to prove her case. The legal burden of proof lies upon the party who invokes the aid of the law and asserts an issue based thereon. In **Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334**, the Court of Appeal held that: **“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”** 1. It follows that the initial burden of proof lies on the Plaintiffs, but the same may shift to the Defendant, depending on the circumstances of the case. In **Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR** it was held that: **“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”** 1. The question then is what amounts to proof on a balance of probabilities**. Kimaru, J**in **William Kabogo Gitau –vs- George Thuo & 2 Others [2010] 1 KLE 526** stated that: **“In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely that not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”** 1. The balance of probabilities is also about what is likely to have happened than the other. In **Lord Nicholls** of Birkenhead in **Re H and Others (Minors) [1996] AC 563, 586 it was** held that; **“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…..”** 1. Furthermore, the standard of proof in civil cases must carry a reasonable degree of probability, but not so high as is required in a criminal case for **such standard is based on** a preponderance of probabilities. In **Palace Investment Ltd –vs- Geoffrey Kariuki Mwenda & Another [2015] eKLR**, the Judges of Appeal held that: **“Denning J, in Miller –vs- Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say;-** **“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.** **This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.”** 1. The Deceased herein was riding his motorcycle. The rule of the road is that each party should drive on the left. The accident occurred at 3 am, where the appellant was the only witness. The other two witnesses died on the spot. The court must therefore rely on the doctrine of *res ipsa* *loquitor* and the appellant’s evidence given the circumstances of the case. 2. It is unknown, at what relative speeds each of the parties were driving. The police officer testified that the driver and the pillion passenger died on the spot. This means there was high impact. The appellant on the other hand indicated that he was driving on his lawful lane when the deceased came at very high speed. He swerved but the deceased hit himself on the left side of the frontal side. 3. Therein lies the imbroglio that is the liability. If the appellant is to be believed and there is no evidence to the contrary, he swerved off the road. In an ordinary cause of events, when swerving off the road, the side that is exposed, if one is in his lane is the right side. 4. Frontal left side injury shows that one swerved towards the right, thus perilously exposing the deceased to injury. This then resulted in the accident. It is clear that the deceased was equally unable to control the motor cycle. This then places the court at a junction, on who was more negligent than the other. On part of the appellant, he was clearly wrong to serve to the right. It cannot be true that there is another vehicle being overtaken otherwise there could have been an accident with the said vehicle. The appellant’s vehicle and the deceased’s motor cycle were the only ones on the road. This is a case where *res ipsa loqitor* comes in. In the case of [*David Onchangu Orioki (Suing as personal representative of Anthony Nyabondo Onchangu (Deceased) v Ismael Nyasimi & Charles Michieka Nyoungo [2019] KECA 434 (KLR*)](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/434/eng%402019-07-31), the court of appeal [Asike-Makhandia, Kiage & Otieno-Odek, JJA)addressed *res ipsa loquitor* as follows: 6. In Ogol – v- Murithi, [1985] KLR 359, it was held that in a road traffic accident, in the absence of any explanation to show that a respondent was on the balance of probabilities not negligent, a finding of negligence is inevitable once it is shown that the doctrine of *res ipsa loquitor* applies. That is not to say a respondent has to prove how and why the accident happened; it would suffice if he is able to show he was not personally negligent even if the accident remained inexplicable. (See **Woods – v- Duncan [1946] AC 401).** 1. The question of *res ipsa loquitor* was also addressed as follows: 27. The appellants did not call any evidence to challenge the respondent’s testimony or enjoin the driver of the second motor vehicle registration number KBA 334M. I am convinced that the doctrine of res ipsa loquitor applies in this case. In the case of Jamal Ramadhan Yusuf & Another v Ruth Achieng Onditi & Anor. (2010) eKLR it was held inter alia: “It is trite law that the mere fact that an accident occurs does not follow that a particular person has driven negligently and/or negligence ipso facto must be inferred. So that it is always absolutely necessary and vital that a party who sues for damages on the basis of negligence must prove such negligence with cogent and credible evidence as he who asserts must prove. In this case the 1st respondent was minded to prove that the accident was caused by the negligence of the appellants, or 2nd respondent and or both.” 28. The application of the doctrine of *res ipsa loquitor* was discussed in the case of Esther Nduta Mwangi & Another vs. Hussein Dairy Transporters Limited Machakos HCCC No. 46 of 2007 inter alia as follows: “Although the defendant denied the accident but pleaded in the alternative that the accident was as a result of negligence on the part of the deceased, the defendant chose to call no evidence whatsoever, and that being the case the particulars of negligence on the part of the deceased were not proved and are mere allegations. The plaintiff, on the other hand pleaded the doctrine of res ipsa loquitor and produced documents including police abstract showing the date and place of the accident although no eye witness to the accident was called. However, since the doctrine of res ipsa loquitor was pleaded, the burden of proof was shifted to the defendant to disprove the particulars of negligence attributed to him.” 29. In the circumstances of this case, I am satisfied that the learned trial magistrate correctly applied the doctrine of res ipsa loquitor hence the appeal as against liability fails. 1. Though not necessary to plead, the Respondent herein pleaded. The facts point to congruence of negligence between the deceased and the appellant. It is not however feasible to find who is more to blame than the other. In such circumstances. The court must find both parties equally to blame. 2. Contributory negligence was addressed succinctly in the case of Mac Drugall App V Central Railroad Co. Rbr 63 Cal 431 where the court held that; - “In an action to recover damages for a personal injury alleged to have been received through the negligence of the defendant, contributory negligence on the part of the plaintiff is a matter of defence and it is an error to instruct the jury that the burden of proof is on the plaintiff to show that the injury occurred without such negligence”. 1. When the left frontal side is hit, in absence of explanation, it connotes that the appellant served to the right. There was no explanation on how the left frontal side was hit. Therefore, having found both parties liable, the best I can do is to hold them equally liable. Therefore, Liability is determined at 50:50 between the parties. I set aside the finding of 80:20 liability as it was not based on the facts of the case. The mere fact that the deceased could not testify does not mean that the court cannot find liability from surrounding facts. In the case of [**Ndiritu (Suing as Administrator for the Estate of George Ndiritu Kariamburi - Deceased) v Ropkoi & another [2004] KECA 65 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2004/65/eng%402004-12-10)**,** the court of appeal [O’Kubasu, Githinji & Waki, JJ.A)] stated as follows in cases where both parties are to blame but the evidence is scanty: **There is no doubt that an accident occurred between the two vehicles on the Nyeri - Mweiga road at the time stated by the two witnesses. In our assessment of the scanty evidence on record however both the lorry driver and the motorcyclist failed to exercise the degree of care and skill reasonably to be expected of a person driving a vehicle on a public highway. They were in our view equally to blame. We therefore apportion liability for the accident at 50/50.** 1. I am in agreement with the reasoning of the Court in the case of **Mombasa Maize Millers & another v Elius Kinyua Gicovi [2021] eKLR** where Nyakundi J referred to *Wayne Ann Holdings Limited (T/a Superplus Food Stores) v Sandra Morgan*, and held as follows: “In this case contributory negligence was raised as a defence. When such a defence [sic] is raised, it is only necessary for a defendant to show a want of care on the part of the claimant for his own safety in contributing to his injury. In Nance v British Columbia Electric Rly [1951] AC 601, at page 611, Lord Simon said: “……When contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove … that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff’s claim the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.” 1. Finally, in deciding whether to disturb quantum given by the lower court, the court should be aware of its limits. Being exercise of discretion the exercise should be done judiciously in the circumstances to ensure that the award is not too high or too low as to be an erroneous estimate of damages. 2. The court of Appeal, pronounced itself succinctly on these principles in **Kemfro Africa Ltd Vs Meru Express Servcie Vs. A.M Lubia & Another 1957 KLR 27** as follows: - “The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages. 1. In the case of *Henry Hidayo Ilanga versus Manyama Manyoke* [1961] EA 705, 713 at paragraph c, Sir Kenneth O’Connor P, in the lead decision to which Sir Alastair Forbes, VP, and Newbold JA agree with nothing useful to add, the former Court of Appeal for East Africa held as follows: In considering this question, I apply the rule laid down by the Privy Council, that is Nance vs British Columbia Electric Co Ltd [1951]A.C. 601, at 613, when discussing the principles to be observed in disturbing the quantum of damages awarded by a judge. “The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance even if the tribunal of the first instance was a judge sitting alone, then before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing damages, applied a wrong principle of law(as by taking into account some irrelevant factor and or leaving out a relevant one); or short of this, that the mount awarded is so inordinately low or so inordinately high that it must be wholly erroneous estimate of damages. 1. Therefore, for me to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure. 2. So my duty as the appellate court is threefold regarding quantum of damages: - 1. *To ascertain whether the Court applied irrelevant factors or left out relevant factors.* 2. *To ascertain whether the award is too high as to amount to an erroneous assessment of damages.* 3. *To ascertain whether the award is simply not justified from evidence.* 3. To be able to do this, I need to consider similar injuries, take into consideration inflation and other comparable awards. 4. On the damages the lower court awarded of Ksh. 50,000/= under the head for pain and suffering, in Civil Appeal No. 42 of 2018 Joseph Kivati Wambua vs SMM & Another (suing as the Legal Representatives of the Estate of EMM-Deceased) paragraph 21 the Hon. Odunga J (as he then was) observed: **“The Appellant has taken issue with the award for pain and suffering on the ground that the evidence on record showed that the deceased passed away the same day and therefore the Respondents ought to have been awarded a lesser sum. In my view what determines the award under that head is how long the deceased took before he either passed away or lost consciousness…** **a distinction ought to be made between a case where the deceased passes away instantly and where the death takes place some times after the accident. In the former, the award ought to be minimal as the legal presumption is that the deceased did not undergo pain before he died. However, where the deceased dies several hours after the accident during which time he was conscious and was in pain, an award for pain and suffering would not be nominal.” (emphasis mine).** 1. The above case law points to the fact that the award of pain and suffering depends on whether the deceased died on the spot or after some time. That is, damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death. Where a deceased died on the spot, courts have taken the approach that minimal damages should be granted unlike in a case where a deceased die later on. In this case, the deceased passed away at the scene of the accident. The amount that the court awarded of Ksh. 50,000/= was not inordinately low or high and I uphold it. 2. On loss of expectation of life, a sum of Ksh. 100,000/= was not inordinately high. There was no evidence that the Deceased was of ill health and Ksh. 100,000/= was within the conventional award. In ***Mercy Muriuki & Another vs. Samuel Mwangi Nduati & Another (Suing as the legal Administrator of the Estate of the late Mwangi) [2019] eKLR*** it was observed that: **“The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs. 100,000/= while for pain and suffering the award range from Kshs. 10,000/= to Kshs. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.”** 1. The next question is a difficult one. The court proceeded on a wrong premise that it did not want to set precedent by departing from the court of appeal decisions and settled questions of law. Though loss of dependency is a question of fact, there are established conventions on dependency. Ordinarily for a person with a family, in this case a wife and two children, both of whom are minors, the dependency ratio is higher. This is contrasted with a single person, who almost wholly depends on himself. 2. Therefore, awards must be commensurate with the loss the dependants suffered. In the case of [**Mohamed Mahmoud Jabane V Highstone Butty Tongoi Olenja [1986] KECA 71 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/1986/71/eng%401986-09-02)**,** the court of appeal [Kneller, Hancox and Nyarangi, JJ A] posited as follows: The reported decisions of this court and its predecessors lay down the following points, among others, for the correct approach by his court to an award of damages by a trial judge. 1. Each case depends on its own facts; 2. awards should not be excessive for the sake of those who have to pay insurance premiums, medical fees or taxes (the body politics); 3. comparable injuries should attract comparable awards. 4. inflation should be taken into account; and 5. unless the award is based on the application of a wrong principle or misunderstanding of relevant evidence or so inordinately high or low as to be an entirely erroneous estimate for an appropriate award leave well alone. See generally Butt v Khan CA Civil Appeal 40 of 1977; Southern Engineering Company Limited v Musingi Mutia, C A Civil Appeal 46 of 1983, Nairobi; Idi Ayub Omari Shabani &Yusuf Juma v City Council of Nairobi & Daniel Nachela Kahungu, CA Civil Appeal 52 of 1984 Hancox and Nyarangi, JJ A and Platt, Ag JA March 6, 1985. 1. The court was plainly wrong in using 1/3 as the dependency ration. It is an indefensible choice that cannot find itself in law books. It is hereby set aside by the court. A dependency ratio for a married woman or children is ordinarily 2/3 but sometimes it comes to ½ but never 1/3. The deceased herein was 25 years and was married. He had 2 children being minors. The bulk of his income goes to maintain his children and spouse. 2. The multiplicand was agreed upon by both sides as the income was said to be as per the deceased’s payslip which showed that he earned Ksh. 34,242/=. This income was not contested. The Deceased died at 25 years old. He would be expected to work until the retirement age of 60 years. Regarding the vicissitudes of life, the multiplier of 33 years was excessive and contrary to the principles on award of damages. The Appellant submitted for 15 years. I find this proposal too low and inadequate. A multiplier of 25 years would be appropriate in the circumstances. 3. The determination of loss of dependency was discussed in the case of **Beatrice Wangui Thairu –vs- Hon. Ezekiel Barngetuny & Another – Nairobi HCCC. No.1638 of 1988 (unreported**), where Ringera J, as he then was, held at page 248 that: “The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years purchases. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature.” 1. The duty of the court on the award of damages was settled by the case of [**Butt v Khan [1978] KECA 24 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/keca/1978/24/eng%401978-02-01), where the court of appeal (Madan, Wambuzi & Law JJA) held as follows: *An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.* 1. The multiplier of 33 years for a 25 year old is too high. Compensation for a road traffic accident is not meant to punish a tortfeasor. The children were minors and the wife was barely 23 years old. The court must have regard to the vicissitudes of life and the fact that the amount is being paid in lumpsum. A multiplier of 25 years will suffice. 2. Consequently, the award of loss of dependency is granted as follows: 34,242/= x 12 x 25 x 2/3 = Ksh. 6,868,400/=. This is lower than had been granted in the lower court save to the question of 1/3 dependency ratio. For public policy and consistency the 2/3 dependency ratio should be maintained in the circumstances. 3. The appeal is thus allowed to the limited extent as aforesaid. 4. This leaves the issue of costs, which is governed by Section 27 of the Civil Procedure Act, which provides as follows: (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. (2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. 1. Costs are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of [**Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/keca/2018/158/eng%402018-10-18) had this to say: "It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown. 1. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of [**Rai & 3 others v Rai & 4 others** [2014] KESC 31 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kesc/2014/31/eng%402014-03-04), as follows: 18.It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation 22. Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costsdo not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant. 1. As the Appeal nominally succeeds, each party to bear own costs in the appeal. 2. There was no appeal against special damages. The special damages that were pleaded and proved are what the lower court awarded. I will not disturb the award under this head. Determination 1. In the upshot, I make the following orders: - 2. Judgment on liability is set aside and substituted with liability of 50:50 between the appellant and the respondent. 3. Appeal on other limbs is dismissed. 4. Judgment on loss of dependency is set aside and substituted with Ksh. 6,848,400/= less 50% liability, leaving a sum of Ksh. 3,434,200/=. 5. Interest on general damages to run from the date of judgment in the lower court. 6. 14 days right of appeal. 7. 30 days stay of execution 8. Each party to bear own costs. **DELIVERED, DATED** and **SIGNED** at **NYERI** on this **13th** day of **May, 2026**. Judgment delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of: -** Ms. Muthoni for the Appellant Mr. Mwangi for the Respondents Court Assistant – Martin